UFCW Local 1500 Welfare Fund v. Novartis Pharmaceuticals Corporation et al

Filing 133

ORDER GRANTING FINAL JUDGMENT AND ORDER OF DISMISSAL APPROVING DIRECT PURCHASER CLASS SETTLEMENT AND DISMISSING DIRECT PURCHASER CLASS CLAIMS terminating (603 in 18-cv-04361) Motion for Attorney Fees; granting (630 in 18-cv-04361) Motion for Attorne y Fees. It is hereby ORDERED, ADJUDGED AND DECREED as follows: The Court has jurisdiction over these actions, each of the parties, and all members of the Class for all manifestations of this case, including this Settlement. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves the Settlement, and finds that the Settlement is, in all respects, fair, reasonable and adequate to Class members and in their best interests. Accordingly, the Settlement shall be consumma ted in accordance with the terms and provisions of the Settlement Agreement. The Court hereby approves the Plan of Allocation of the Settlement Fund as proposed by Class Counsel (the "Plan of Allocation"), which was summarized in the Notice of Proposed Settlement and is attached to Plaintiffs' Motion for Final Approval of Settlement, and directs RG/2 Claims Administration, the firm retained by Class Counsel and previously appointed by the Court as the Claims Administrator, to dist ribute the net Settlement Fund as provided in the Plan of Allocation. All claims brought by the Direct Purchaser Class Plaintiffs against Novartis in In re: Novartis and Par Antitrust Litigation, 18-cv-04361-AKH (S.D.N.Y.) (the "Direct Purchaser Class Action") are hereby dismissed with prejudice, and without costs ( other than as provided herein). Upon the Settlement Agreement becoming final in accordance with Paragraph 6 of the Settlement Agreement, Novartis and its past, present, and future parents, subsidiaries, divisions, affiliates, joint ventures, stockholders, officers, directors, management, supervisory boards, insurers, general or limited partners, employees, agents, attorneys, servants, representatives (and the parents&# 039;, subsidiaries ', and affiliates' past, present, and future officers, directors, employees, agents, attorneys, servants, and representatives), and predecessors, successors, heirs, executors, administrators, representatives, and assigns of each of the foregoing ( collectively, the "Releasees") from all manner of claims, rights, debts, obligations, demands, actions, suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever, including costs, ex penses, penalties and attorneys' fees, under federal or state laws, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, contingent or noncontingent, in law or equity, that arise out of or relate, in whole or in part in an y manner to the Direct Purchaser Class Action that accrued prior to the date of this Settlement Agreement, ( collectively, this entire paragraph represents the "Released Claims"). In addition, Plaintiffs and each Class member, on behalf of themselves and all other Releasors, hereby expressly waive, release and forever discharge, upon the Settlement becoming final, any and all provisions, rights and/or benefits conferred by § 1542 of the California Civil Code, which reads as furthe r set forth in this Order. Upon consideration of Class Counsel's petition for fees, costs and expenses, Class Counsel are hereby awarded attorneys ' fees totaling $42,150,000.00 (representing 33 1/3 % of the Settlement Fund net of service awards awarded pursuant to paragraph 15, below), to be paid solely from the Settlement Fund and only if and after the Settlement becomes final in accordance with Paragraph 6 of the Settlement Agreement. Upon consideration of Class Counsel &# 039;s petition for service awards for Class Representatives, Betances, RDC, FWK and KPH are each hereby awarded $100,000, to be paid solely from the Settlement Fund and only if and after the Settlement becomes final in accordance with Paragraph 6 of the Settlement Agreement. Class Counsel Bruce E. Gerstein of Garwin Gerstein & Fisher LLP shall allocate and distribute such attorneys' fees among the various Class Counsel which have participated in this litigation. The Releasees shall hav e no responsibility for,and no liability whatsoever with respect to, any payment or disbursement of attorneys' fees,expenses, costs or service awards among Class Counsel and/or Class Representatives, nor with respect to any allocation of attorne ys' fees, expenses, costs or service awards to any other person or entity who may assert any claim thereto. The attorneys' fees and service awards authorized and approved by this Final Judgment and Order shall be paid to Garwin Gerstein & F isher LLP within five (5) business days after the first distributions of the Settlement Fund are made to Class Members or as soon thereafter as is practical and in accordance with the terms of the Settlement Agreement and the Escrow Agreement. The at torneys' fees and service awards authorized and approved by this Final Judgment and Order shall constitute full and final satisfaction of any and all claims that Plaintiffs and any Class member, and their respective counsel, may have or assert f or reimbursement of fees, costs, and expenses, and service awards, and Plaintiffs and members of the Class shall not seek or demand payment of any fees and/or costs and/or expenses and/or service awards from Novartis other than from the Settlement Fu nd. The Court retains exclusive jurisdiction over the Settlement and the Settlement Agreement as described therein, including the administration and consummation of the Settlement, and over this Final Judgment and Order. The Court finds that this Fin al Judgment and Order adjudicates all of the claims, rights and liabilities of the parties to the Settlement Agreement (including the members of the Class), and is final and shall be immediately appealable. Neither this Order nor the Settlement Agree ment nor any other Settlement-related document shall constitute any evidence, admission, or concession by Novartis or any other Releasee, in this or any other matter or proceeding of any kind whatsoever, civil, criminal or otherwise, before any court , administrative agency, regulatory body, or any other body or authority, present or future, nor shall either the Settlement Agreement, this Order, or any other Settlement-related document be offered in evidence or used for any other purpose in this or any other matter or proceeding except as may be necessary to consummate or enforce the Settlement Agreement, the terms of this Order, or if offered by any Releasee in responding to any action purporting to assert Released Claims, or if offered by any Releasor in asserting that a claim is not a Released Claim, including because such claim is covered by Paragraph 12 of the Settlement Agreement "Reservation of Claims"). SO ORDERED (Signed by Judge Alvin K. Hellerstein on 7/25/23) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE: NOV ARTIS AND PAR
ANTITRUST LITIGATION
Case No. 1:18-cv-04361 (AKH)

THIS DOCUMENT RELATES TO:
All Direct Purchaser Class Actions

...-fPROPOSEB},ORDER GRANTING FINAL JUDGMENT AND
ORDER OF DISMISSAL APPROVING DIRECT PURCHASER
CLASS SETTLEMENT AND DISMISSING DIRECT
PURCHASER CLASS CLAIMS
Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, and in accordance with
the terms of the Settlement Agreement dated December 23 , 2022, between plaintiffs Drogueria
Betances, LLC ("Betances"), Rochester Drug Co-Operative, Inc. ("RDC"), FWK Holdings, LLC
("FWK") and KPH Healthcare Services, Inc., a/k/a Kinney Drugs, Inc. ("KPH") (collectively,
the "Class Representatives"), and on behalf of the Class defined below (together with the Class
Representatives, the "Plaintiffs"), and Defendants Novartis Pharmaceutical s Corporation and
Novartis AG (collectively "Novartis"), it is hereby ORDERED, ADJUDGED AND DECREED
as follows:

1.

This Final Judgment and Order of Dismissal hereby incorporates by reference the

definitions in the Settlement Agreement among Plaintiffs and Novartis, and all capitalized terms
used and not otherwise defined herein shall have the meanings set forth in the Settlement
Agreement.
2.

The following class (the "C lass" or "Direct Purchaser Class") has been certified

under Fed. R. Civ. P. 23(b)(3):
All persons or ent1t1es in the United States, including its territories,
possessions, and the Commonwealth of Puerto Rico, who purchased

Exforge directly from Novartis, or who purchased a generic version of
Exforge directly from Par, at any time during the Class Period from
September 21, 2012, until March 30, 2015 ("Exforge Direct Purchasers").
Excluded from the Class are Novartis and Par and their officers, directors,
management and employees, predecessors, subsidiaries and affiliates, and
all federal governmental entities.
Also excluded from the Class for purposes of this Settlement Agreement are
the following entities: CVS Pharmacy, Inc. (which includes Omnicare),
Rite Aid Corporation, Rite Aid Hdqtrs. Corp., Walgreen Co., The Kroger
Co. (which includes Peytons), and H-E-B L.P. ("Retailer Plaintiffs").
3.

The Court previously appointed the Class Representatives Betances, RDC, FWK

and KPH. The Court previously appointed Garwin Gerstein & Fisher, LLP as Lead Counsel for
the Class ("Class Counsel"). The Class Representatives and Class Counsel have fairly and
adequately represented the interests of the Class and satisfied the requirements of Fed. R. Civ. P.
23(g).
4.

The Court has jurisdiction over these actions, each of the parties, and all members

of the Class for all manifestations of this case, including this Settlement.
5.

The notice of settlement (substantially in the form presented to this Court as Exhi bit

B to the Settlement Agreement) (the "Notice") directed to the members of the Class via First Class
Mail, constituted the best notice practicable under the circumstances. In making this
determination, the Court finds that the Notice provided for individual notice to all members of
the Class who were identified through reasonable efforts. Pursuant to, and in accordance with,
Rule 23 of the Federal Rules of Civil Procedure, the Court hereby finds that the Notice provided
Class Members due and adequate notice of the Settlement, the Settlement Agreement, these
proceedings, and the rights of Class Members to object to the Settlement.
6.

Due and adequate notice of the proceedings having been given to the Class and a

full opportunity having been offered to the Class to participate in the May 16, 2023 Fairness

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Hearing, it is hereby determined that all Class Members are bound by this Order and Final
Judgment.
7.

The Settlement of this Direct Purchaser Class Action was not the product of

collusion between the Class Representatives and Novartis or their respective counsel, but rather
was the result of bona fide and extensive arm's-length negotiations conducted in good faith
between Class Counsel and counsel for Novartis, with the assistance of a mediator, Eric D.
Green.
8.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby

approves the Settlement, and finds that the Settlement is, in all respects, fair, reasonable and
adequate to Class members and in their best interests. Accordingly, the Settlement shall be
consummated in accordance with the terms and provisions of the Settlement Agreement.
9.

The Cou11 hereby approves the Plan of Allocation of the Settlement Fund as

proposed by Class Counsel (the "Plan of Allocation"), which was summarized in the Notice of
Proposed Settlement and is attached to Plaintiffs' Motion for Final Approval of Settlement, and
directs RG/2 Claims Administration, the firm retained by Class Counsel and previously appointed
by the Court as the Claims Administrator, to distribute the net Settlement Fund as provided in the
Plan of Allocation.
10.

All claims brought by the Direct Purchaser Class Plaintiffs against Novartis in In

re: Novartis and Par Antitrust Litigation, l 8-cv-04361-AKH (S.D.N.Y.) (the "Direct Purchaser
Class Action") are hereby dismissed with prejudice, and without costs ( other than as provided
herein).
11.

Upon the Settlement Agreement becoming final in accordance with Paragraph 6 of

the Settlement Agreement, Novartis and its past, present, and future parents, subsidiaries,

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divisions, affiliates, joint ventures, stockholders, officers, directors, management, supervisory
boards, insurers, general or limited partners, employees, agents, attorneys, servants,
representatives (and the parents' , subsidiaries ', and affiliates' past, present, and future officers,
directors, employees, agents, attorneys, servants, and representatives), and predecessors,
successors, heirs, executors, administrators, representatives, and assigns of each of the foregoing
(collectively, the "Releasees") from all manner of claims, rights, debts, obligations, demands,
actions, suits, causes of action, damages whenever incurred, liabilities of any nature whatsoever,
including costs, expenses, penalties and attorneys' fees, under federal or state laws, whether
known or unknown, foreseen or unforeseen, suspected or unsuspected, contingent or noncontingent, in law or equity, that arise out of or relate, in whole or in part in any manner to the
Direct Purchaser Class Action that accrued prior to the date of this Settlement Agreement,
(collectively, this entire paragraph represents the " Released Claims") .
12.

In addition, Plaintiffs and each Class member, on behalf of themselves and all

other Releasors, hereby expressly waive, release and forever discharge, upon the Settlement
becoming final, any and all provisions, rights and/or benefits conferred by § 1542 of the
California Civil Code, which reads:
Section 1542. General Release; extent. A general release does not extend to
claims which the creditor does not know or suspect to exist in his or her favor at
the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor;
or by any law of any state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to§ 1542 of the California Civil Code. Each Releasor may
hereafter discover facts other than or different from those which he, she or it knows or believes to
be true with respect to the claims which are the subject matter of Paragraph 11 of the Settlement
Agreement, but each Releasor hereby expressly waives and fully, finally and forever settles,
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releases, and discharges, upon this Settlement becoming final , any known or unknown, foreseen
or unforeseen, suspected or unsuspected, asserted or unasserted, contingent or non-contingent
claim that would otherwise fall within the definition of Released Claims, whether or not concealed
or hidden, without regard to the subsequent discovery or existence of such different or additional
facts. Each Plaintiff and member of the Class also hereby expressly waives and fully , finall y and
forever settles, releases, and discharges any and all claims that are the subject matter of Paragraph
11 of the Settlement Agreement that it may have against any Releasees under§ 17200, et seq ., of
the California Business and Professions Code or any similar comparable or equivalent provision
of the law of any other state or territory of the United States or other jurisdiction.
13.

As set forth in Paragraph 12 of the Settlement Agreement (with subheading

"Reservation of Claims"), the release set forth in Paragraph 11 of the Settlement Agreement (and
in Paragraphs 11 and 12 of this Order) shall not release any claims between Plaintiffs, members
of the Class, and the Releasors, on the one hand, and Novartis and the Releasees, on the other
(a) arising in the ordinary course of business between Releasors and Releasees under Article 2 of
the Uniform Commercial Code (pertaining to sales), the laws of negligence or product liability or
implied warranty, breach of contract, breach of express warranty, or personal injury; (b) arising
out of or in any way relating to any alleged price-fixing agreement between or among
manufacturers of generic pharmaceutical products, including but not limited to Novartis or
Sandoz Inc ., including claims alleged in In re: Generic Pharmaceuticals Pricing Antitrust Litig.,
MDL No. 2724, Case No. 16-MD-2724 (E.D . Pa.); and/or (c) of any sort that do not relate
specifically to brand or generic Exforge.
14.

Upon consideration of Class Counsel' s petition for fees, costs and expenses, Class

Counsel are hereby awarded attorneys ' fees totaling $42,150,000 .00 (representing 33 1/3 % of

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,

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the Settlement Fund net of service awards awarded pursuant to paragraph 15, below), to be paid
solely from the Settlement Fund and only if and after the Settlement becomes final in accordance
with Paragraph 6 of the Settlement Agreement.
15.

Upon consideration of Class Counsel ' s petition for service awards for Class

Representatives, Betances, RDC, FWK and KPH are each hereby awarded $100,000, to be paid
solely from the Settlement Fund and only if and after the Settlement becomes final in accordance
with Paragraph 6 of the Settlement Agreement. Class Counsel Bruce E. Gerstein of Garwin
Gerstein & Fisher LLP shall allocate and distribute such attorneys' fees among the various Class
Counsel which have participated in this litigation . The Releasees shall have no responsibility for,
and no liability whatsoever with respect to, any payment or disbursement of attorneys' fees ,
expenses, costs or service awards among Class Counsel and/or Class Representatives, nor with
respect to any allocation of attorneys' fees, expenses, costs or service awards to any other person
or entity who may assert any claim thereto. The attorneys' fees and service awards authorized
and approved by this Final Judgment and Order shall be paid to Garwin Gerstein & Fisher LLP
within five (5) business days after the first distributions of the Settlement Fund are made to Class
Members or as soon thereafter as is practical and in accordance with the terms of the Settlement
Agreement and the Escrow Agreement. The attorneys' fees and service awards authorized and
approved by this Final Judgment and Order shall constitute full and final satisfaction of any and
all claims that Plaintiffs and any Class member, and their respective counsel, may have or assert
for reimbursement of fees, costs, and expenses, and service awards, and Plaintiffs and members
of the Class shall not seek or demand payment of any fees and/or costs and/or expenses and/or
service awards from Novartis other than from the Settlement Fund.

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16.

The Court retains exclusive jurisdiction over the Settlement and the Settlement

Agreement as described therein, including the administration and consummation of the
Settlement, and over this Final Judgment and Order.
17.

The Court finds that this Final Judgment and Order adjudicates all of the claims,

rights and liabilities of the parties to the Settlement Agreement (including the members of the
Class), and is final and shall be immediately appealable. Neither this Order nor the Settlement
Agreement nor any other Settlement-related document shall constitute any evidence, admission, or
concession by Novartis or any other Releasee, in this or any other matter or proceeding of any kind
whatsoever, civil, criminal or otherwise, before any court, administrative agency, regulatory body,
or any other body or authority, present or future, nor shall either the Settlement Agreement, this
Order, or any other Settlement-related document be offered in evidence or used for any other
purpose in this or any other matter or proceeding except as may be necessary to consummate or
enforce the Settlement Agreement, the terms of this Order, or if offered by any Releasee in
responding to any action purporting to assert Released Claims, or if offered by any Releasor in
asserting that a claim is not a Released Claim, including because such claim is covered by
Paragraph 12 of the Settlement Agreement "Reservation of Claims").
SO ORDERED t h i ~ y of._,,.~~- -~

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